IN HER BOOK THE NEW JIM Crow, Michelle Alexander argues that the system of mass incarceration in the United States, fueled by the war on drugs, operates in a seemingly color-blind, race-neutral way to create a new Jim Crow system that forces African Americans, especially African American men, into a permanent underclass. I believe that attacks on Roe v Wade and efforts to treat fertilized eggs, embryos, and fetuses as separate legal persons will establish a system of law in which women who have abortions will go to jail. Furthermore, all pregnant women are at risk of being assigned to a second-class status that will not only deprive them of their reproductive rights and physical liberty through arrests, but also effectively strip them of their status as full constitutional persons.

Here I address major changes in US law enforcement since Roe v Wade was decided in 1973 that make it likely that if Roe is over-turned women who have abortions will be arrested and sentenced to incarceration. I discuss how efforts to undermine Roe and to establish separate legal personhood for fertilized eggs, embryos, and fetuses are already providing the basis for the arrests and detentions of and forced interventions on pregnant women. I conclude that these efforts, if unchecked, not only will result in massive deprivations of pregnant women’s liberty, but also will create a basis for ensuring a permanent underclass for preg- nant women or, for lack of a better term, a new Jane Crow.

…

Today’s criminal justice system, however, is radically different from the one that existed when Roe was decided. In the 1970s, the United States had approximately 300000 prisoners, and relatively few women were prosecuted for any crime, including abortion. Between 1970 and 2000, the US population rose by less than 40%, yet the number of people in prisons and jails rose by more than 500%. The United States now has a prison industrial complex that includes a for-profit prison industry that reaps enormous financial gain from building prisons, providing ongoing services to those prisons, and ensuring that those prisons remain filled.

Currently, US prisons and jails hold more than 1.5 million people, and 4.8 million more are under some form of criminal justice supervision in the community, such as probation and parole. In 1977, the number of women in prison was 11212 and in 2009, it was 105197—an increase of 938%. Today, more than 200000 women are behind bars, and more than one million women are on probation or parole. The fact that a woman is also a mother caring for one or more children is no deterrent to incarceration. Two thirds of the incarcerated women in the United States have at least one minor child, and approximately five percent of women are pregnant when they begin their incarceration.

This new era of mass incarceration—which is largely accepted by the public, defended by an army of lobbyists, and justified by a war on drugs deeply rooted in America’s history of slavery and racism makes it far more likely today than in 1973 that if Roe is overturned women will themselves be arrested and jailed. It is also likely that women having or considering having abortions will be subject to far more government surveillance than in the past.